U.S. v. Elonis: 'Rap Lyrics' Case Isn't Really About Rap Lyrics

On December 1, in one of the most anticipated cases so far this year, the Supreme Court will hear Elonis v. United States, also known as the "Facebook threats" or "rap lyrics" case. Here's our prior coverage:

Rap lyrics, however, have very little to do with the case. Anthony Elonis made a series of increasingly threatening statements on Facebook, aimed variously at a co-worker, his ex-wife, the amusement park he was fired from, an unspecified school, the local sheriff's department, and the FBI. The questions presented amount to whether a criminal threat can be solely subjective, or whether it must be both objective and subjective. (The Third Circuit said that subjective intent was irrelevant.)

Subjective Intent Really Isn't at Issue Here

"Song lyrics were a consistent subject of [Elonis'] postings," Elonis claimed in his brief on the merits to the Court. That is to say, Elonis asserts that his threatening statements were actually "rap lyrics" that were "therapeutic." Enter the contention that he had no subjective intent to threaten.

But whether subjective intent is a component of a threat isn't seriously in question. The Court's opinion in Virginia v. Black, the cross-burning case, shows that subjective intent matters. Virginia had written its statute so that the prosecutor didn't have to prove intent to threaten when the defendant burned a cross. If the Court didn't think subjective intent was a necessary element of the crime, then why did it strike Virginia's law? The bulk of Elonis' brief is devoted to convincing the Court that subjective intent is the rule, but it likely doesn't need that much convincing.

Subjective Threats. Fine. Now What?

As Justice Scalia repeatedly emphasized in oral arguments in Heien v. North Carolina on Monday, the Court is concerned with judgments, not opinions. So what would the ultimate outcome of Elonis be? Probably the same, even if the Third Circuit got the law wrong. (In a recent case about attempted criminal threats, Justice Goodwin Liu of the California Supreme Court gave a rigorous rationale for why threats should be both objective and subjective.)

We can see giving Elonis a pass on the threats to harm a kindergarten, or the one toward his co-worker; those are sufficiently nebulous that they might not be threats beyond a reasonable doubt. The rest, however, are different. The proximity of the posts to the events they responded to, coupled with the nature of the statements themselves, suggests, for example, violent retribution if the sheriff comes to enforce a restraining order or if the FBI returned to Elonis' house. These weren't just vague musings: They were directed at specific, named individuals.

Elonis is free to post to Facebook for "therapeutic" reasons, but there will be a point where those posts -- admittedly an exercise of his free speech rights -- crosses the line into "true threat" territory. The Court doesn't have to say specifically where the line is; it just has to say that Elonis crossed it.

Here's one possible outcome of this case: The Court clarifies that threats also require a subjective intent to threaten. It remands to the district court for new proceedings, possibly a new trial where subjectivity is also taken into account (and Elonis is likely still convicted). There will be a concurring opinion in which one or more justices says, "You know what? We can decide this right now: The standard for overturning a jury verdict is whether there's enough evidence such that a reasonable jury could have found the elements of the crime beyond a reasonable doubt. We don't need to remand the case to see that, on this record, a jury could have found Elonis' statements evidenced a subjective intent to threaten. Case closed."